01990183_r
05-21-2002
Elsworth Barrington, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration) Agency.
Elsworth Barrington v. Department of Transportation
01990183
May 21, 2002
.
Elsworth Barrington,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration)
Agency.
Appeal No. 01990183
Agency No. DOT-3-95-0490B
Hearing No. 100-97-7041X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 15, 1998, finding that one
of the provisions of a April 22, 1998 settlement agreement into which
the parties entered was unenforceable. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(2) Complainant shall be retroactively promoted to GM (FM)-301-15, step 8,
effective June 2, 1995, and shall receive back pay and benefits associated
with that grade and step from June 2, 1995 until June 2, 1998, subject to
standard deductions, including Thrift Savings Program (TSP) Contributions.
By letter to the agency dated June 4, 1998, complainant, through
his attorney, alleged that the agency was in breach of the settlement
agreement. Specifically, complainant alleged that the agency failed to
fully comply with provision (2) when on June 2, 1998, complainant was
advised that the agency could only retroactively promote him to FM-15,
step 5, instead of to step 8, because of restrictions mandated by the
Back Pay Act of 1996, as amended.<1>
In its September 15, 1998 FAD, the agency concluded that it breached
provision (2) of the settlement, but that it complied with the remaining
provisions. The agency determined that provision (2) of the agreement
is unenforceable because of restrictions in the Back Pay Act of 1966,
as amended. The complaint was reinstated for further processing from
the point where processing had ceased.
On appeal, complainant through his attorney, argues that the application
of the Back Pay Act (BPA) was the only reason presented by the agency why
complainant could not be retroactively promoted any higher than FM-15/5.
Complainant's attorney argues that the agency entity that is the party
to the settlement agreement (Federal Aviation Administration) is no
longer required to follow the Back Pay Act. Complainant's attorney
requests that the Commission reverse the FAD; order the agency to take
prompt remedial action to fully implement the settlement agreement to
retroactively promote him to FM-15/8, effective 6/2/95, with full pay,
interest, and all related entitlements; remand the case to the AJ to
conduct proceedings to determine if complainant is entitled to any
compensatory damages; and that the agency be ordered to reimburse him
for his reasonable attorney's fees and expenses incurred on appeal.
The agency did not raise new contentions in response to complainant's
appeal.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
After a careful review of the record, the Commission determines that
the agency breached provision (2) of the April 22, 1998 agreement by
not retroactively promoting complainant to GM (FM)-301-15, step 8,
effective June 2, 1995, and issuing back pay and benefits associated
with that grade and step from June 2, 1995 until June 2, 1998, subject to
standard deductions, including Thrift Savings Program (TSP) Contributions.
Contrary to the agency's findings, the Commission finds the the Back
Pay Act does not prohibit complainant from being retroactively promoted
and receiving back pay and benefits in accordance with the agreement.
The Commission notes that EEOC Management Directive 110, Chapter 12
part III, provides that �The independent Title VII authority to settle
EEO claims is significant because unlike the Back Pay Act, section 717 of
Title VII does not limit awards of back pay to situations where there has
been a finding of an unjustified or unwarranted personnel action. Thus,
there is no impediment to an award of back pay as part of a settlement
without a finding of discrimination.� (emphasis added).
On appeal, complainant, through his attorney, seeks enforcement of
provision (2). Pursuant to our authority in 29 C.F.R. � 1614.504(c), we
order the agency to take prompt corrective steps to implement provision
(2) of the settlement agreement. Accordingly, the FAD is REVERSED and
the matter is REMANDED to the agency for further processing in accordance
with the ORDER below.<2>
ORDER
1. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall implement provision (2) of the
settlement agreement. The agency is ORDERED to execute the appropriate
paperwork required to effectuate complainant's retroactive promotion GM
(FM)-301-15, step 8, effective June 2, 1995, with back pay and benefits
associated with that grade and step from June 2, 1995 until June 2,
1998, subject to standard deductions, including Thrift Savings Program
(TSP) Contributions. A copy of the agency's paperwork to effectuate the
retroactive promotion, as well as documents showing the enhanced back
pay and benefits payments shall be sent to complainant, his attorney,
and the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the
agency. The attorney shall submit a verified statement of fees to the
agency -- not to the Equal Employment Opportunity Commission, Office of
Federal Operations -- within thirty (30) calendar days of this decision
becoming final. The agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 21, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The settlement agreement further obligated the agency to pay complainant
$17,500.00. That provision is not at issue on appeal
2Complainant has requested compensatory damages as a remedy for the breach
of provision (2). The Commission notes, however, that compensatory
damages are not available for breach allegations. Child v. Department
of Transportation, EEOC Appeal No. 01952080 (January 19, 1996).